In a recent Article forthcoming in the Notre Dame Journal of International and Comparative Law, “Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri DK Basu v. State of West Bengal”, I explore one aspect of the countermajoritarian difficulty engendered by use of foreign precedent. Usually, that concern is articulated in the following way: when judges invalidate as unconstitutional executive or legislative measures, they do so in tension with democratic principles since executive and legislative measures flow from law making authorities more accountable to the electorate; use of foreign precedent exacerbates this tension since judges invalidate executive or legislative measures based on different constitutional experiences and may “cherry pick” precedent that favors a predetermined constitutional conclusion. In the Article, I argue that not only might judges use foreign precedent thusly, but they may in fact do so to build a global body of precedent, relying on each other’s judgments for legitimacy, which supports the assertion of structural judicial power.

The Supreme Court of India’s judgment in Shri DK Basu v. State of West Bengal (DK Basu), a seminal constitutional judgment on detainee rights, appears to complete a jurisprudential cycle in which a set of constitutional precedents beginning with its judgment in Nilabati Behera v. State of Orissa gains strength as constitutional support for structural judicial authority in the New Zealand Court of Appeal’s (now the New Zealand Supreme Court) judgment in Simpson v. Attorney General (Baigent’s Case) and returns to the Supreme Court of India in DK Basu having gathered additional structural judicial authority drawn from Ireland, India and the Judicial Committee of the Privy Council as it had interpreted an idiosyncratic provision of the pre-1976 Constitution of Trinidad & Tobago. This latter decision, Maharaj v. Attorney-General of Trinidad and Tobago, interpreted the Constitution of Trinidad & Tobago to allow an action by a barrister against a trial judge who had cited him for contempt and ordered seven days’ imprisonment. The Privy Council interpreted the following provision in Section 6 of the Constitution of the time to allow an action in public law:

The High Court . . . . may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of [constitutional rights] . . . .

In Nilabati Behera, the Supreme Court of India relied upon Maharaj in a wrongful death (in police custody) suit based on Articles 32 and 226 of the Constitution of India allowing the Supreme Court to order remedies for constitutional violations. In Baigent’s Case, the New Zealand Court of Appeal allowed victims of an unauthorized police search to bring suit for money damages against the state based on New Zealand’s Bill of Rights Act, although that law was 1) a statute passed by a majority Parliamentary vote and 2) Parliament had considered and rejected authorizing judicial authorities to order monetary remedies for violations. The Court not only cited Maharaj and Nilabati Behera but also Irish constitutional cases authorizing the Supreme Court of Ireland to 1) abrogate sovereign immunity for constitutional violations (the Court actually determined that sovereign prerogatives had not survived the transition from British dominion to the Irish Free State and therefore the 1937 Constitution did not include them) and 2) “the Court’s powers in [the protection of constitutional rights] are as ample as the defence of the Constitution requires.” In DK Basu, the Supreme Court of India cited Maharaj, the Irish precedent cited in Baigent’s Case as well as Baigent’s Case itself in support of sweeping regulations imposed on state police as well as monetary remedies for victims of police abuse. The Court cited Baigent’s Case for the proposition that

[T]he courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed . . . Enjoyment of the basic human rights are the entitlement of every citizen and their protection the obligation of every civilized state . . . .They do not depend on the legal or constitutional form in which they are declared.”

In the Article, I outline a number of alternatives to what appears as a process of structural-judicial aggrandizement. Supreme Court of India judgments often borrow liberally from previous precedent. The Court could have reached its conclusions based on its own precedents. In DK Basu and Baigent’s Case, both courts were in part interpreting obligations under the International Covenant on Civil and Political Rights. Yet, the march of Maharaj – based on a liberal reading of a fairly specific constitutional provision in a judicial contempt context – should give advocates of constitutional borrowing pause. The New Zealand Court of Appeal borrowed Nilabati Behera as well as Irish precedent based on the failure to allow a challenge to an arrest warrant as well as a pedestrian slip-and-fall to give to itself wide powers under the Bill of Rights Act. More importantly, the precedents upon which the Supreme Court of India relied have been scaled back. In 2001, the Supreme Court of Ireland narrowed the circumstances under which it could order remedies for constitutional violations. In 2011, the New Zealand Supreme Court rejected extension of Baigent’s Case to judicial acts and did so under a narrowed reading of Maharaj. Yet those precedents presumably retain their now dated force under Indian constitutional law, a problem I am now exploring.

One Response

Very interesting post, Sam. I might however frame the migration in a somewhat less ominous light. Rather than misinterpreting and misapplying what were particularistic decisions based on different constitutional texts across countries, might we say that these courts are just working through emergent international law norms on the right to a remedy, and that must now form part of national constitutional law?
Perhaps a slightly different way to put the point: if we accept the migration of substantive constitutional ideas as part of the working through of certain basic principles of comparative constitutionalism, why should we assume that matters of process and remedy are necessarily more particular to individual national texts? If anything, I would argue that matters of process and constitutional remedy travel too little across countries….

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